The top 10 plundered art articles

by Marc Masurovsky

The plundered art blog was born without anyone noticing it in May 2010.  As so many of these ventures go, nothing much was done in the first six months until December 23, 2010, when two brief pieces appeared which summarized the birth of the Holocaust Art Restitution Project (HARP) and events leading up to its establishment in September 1997.  On Christmas Eve 2010, perhaps on a lark, I wrote a review of “The Night of The Generals”, a campy film about anti-Hitler stirrings amongst the German general staff. My way of dipping my pinky toe in the murky waters of blogging.

2011 is when the juices began to flow and HARPs’ blog, plundered art, started to take shape.  For those of you who operate blogs on your own time, ad-free, with no staff other than yourselves, you know how much emotional and physical energy is required to keep such an adventure from becoming cybernetic driftwood and another digital artifact floating across the Internet ether.

Fast forward to October 29, 2017.

Time to take stock of the past six years, 307 articles later, all devoted in some fashion or form, directly, indirectly, to the broad topic of cultural plunder in the context of genocide, the challenges implicit in the identification and recovery of looted objects found in public and private collections on both sides of the Atlantic Ocean.  Many articles were written out of spite, despair, impatience, irritation, annoyance, and also out of a genuine desire to inform and to share some knowledge about events that transpired more than 75 years ago and continue to haunt us today, should you ever be paying attention to them.

Politics permeate the way that we view art, and in particular art with problematic histories. This is where provenance enters into the discussion; a word that I never paid attention to until the Schiele scandalof late 1997, early 1998, grabbed headlines in New York and Vienna, shaking the art world because New York city policemen dared enter the temple of art and money that is the Museum of Modern Art (MoMA), to remove from it two paintings executed by the bad boy of Vienna, Egon Schiele, that were suspected of having been plundered in the aftermath of the March 1938 Anschluss from two Jewish owners, victimized by the Nazis.

Politics inform the stories underlying countless numbers of works and objects of art, because history has a nasty way of interfering with their peregrinations through time and space, from the moment they exit the artist’s studio to the moment that they adorn the wall of a living room, dining room, bedroom or languish as ripening investments in freeport bunkers located in “neutral” territories like Switzerland, Singapore, and god knows where else, out of reach, out of mind, lost to the world.

Enough of this rhetoric.

It is my pleasure to present to you the top 10 articles which have graced the virtual pages of the “plundered art” blog. In honor of David Letterman, we will count them down in reverse order from 10 to 1.

[drum roll]

10.

Deconstructing Aphrodite, published on January 28, 2012

9.

The five Schiele drawing of Karl Maylander, published on June 16, 2011

8.

ERR database-Georges Bernheim, published on April 2011

7.

Franz Marc's "The large blue horses," published on January 5, 2012

6.

Van Gogh’s 1889 depiction of his mutilated ear smoking apipe, published  on June 5, 2011

5.

Nazi plunderer Bruno Lohse gets a posthumous rewrite, published on July 29, 2011

4.

The US Department of State is structurally unable to perform appropriate provenance research, published on December 5 2016

Interestingly enough, the three top articles published by plundered art each pertain to a work of art, produced by Franz Marc, Jacopo Zucchi, and Paul Klee.

Let's hear it for.....

3.

“The red horses”, by Franz Marc, published on January 3, 2012

2.

Jacopo Zucchi, “the bath of Bathsheba”, published on August 2, 2011

And the all-time winner which has outpaced its rivals in no uncertain terms like a steed racing across the finish line at a race track of your choosing...

[extra drum rolls]

1.

Angelus Novus, Angel of History, by Paul Klee, published on February 26, 2013

Last thoughts before calling it a day:

It gives me hope, in these times of grave uncertainties where the word “ethics” appears to have been gutted of any meaning, where it apparently is still ok to steal thy neighbor’s property because you are likely not to get caught—plunder, once again, is the only crime against humanity that pays for itself— that a savant blend of art, history, politics, war, justice, and ethics, still arouses interest and even passion amongst you out there, yes, you who are spread out across the seven seas and every continent, encompassing more than 60 countries—yes, that is the breadth of our readership, however impossible it is to verify whether you are mere digital echoes resulting from spam assaults or unsuccessful hacks (as in the Russian case), or men and women of all ages (yes, we do have readers who are in high school) who have expressed an interest in the fate of art objects misappropriated during acts of mass conflict and genocide, and which the art market and privately owned as well as government-run museums refuse to return to their rightful owners for a variety of inexplicable reasons. It is for you, the reader, that this blog exists.

Master of the game

by Marc Masurovsky

Mikhail Piotrovsky is a heavily-decorated, scholarly, and savvy art historian who has been raised in Soviet then Russian museology. He is a true son of Mother Russia.

In a Washington Post article dated April 23, 2003, Piotrovsky was described by Linda Hales as Russia’s cultural ambassador. In an interview given that year, he described the Hermitage as a mirror of Russia. At that point, he was Russian President Vladimir Putin’s deputy on the President’s Council on Culture, “Russia’s official voice in matters of culture.”

To demonstrate Piotrovsky’s willingness to wield the stick in order to get his way, he has threatened to cancel loan commitments to “Western” museums if his conditions were not met. For instance, a series of exhibits in London in 2005 was jeopardized by his insistence to obtain assurances of immunity from seizure. It’s simple. To gain access to the Hermitage’s treasures, museum leaders from around the world must play by Piotrovsky’s rule book.

The Hermitage Museum, which he has headed now for twenty years following in his father’s footsteps, is the pearl of the Russian museum world and an object of global envy and admiration. The Hermitage fuels Russian pride and is used to project Russia’s cultural hegemony. The 1995 display of “trophy art” at the Hermitage was the clearest expression of this sentiment.

The Hermitage is the cultural expression and, as such, the agent of Russian foreign cultural policy. It holds and stewards some of the most important collections in the world of Old Master paintings (from the West), Impressionist works (from the West) and antiquities from all parts of the ancient world (including those that were seized during the liberation by Soviet Army units of the eastern parts of Germany and other countries). It fuels the insatiable appetite of world-class “globalist” or “universalist” museums in Western Europe and North America. Russian leaders make wide use of the museum as a backdrop for high-level encounters with foreign heads of state and their delegations. When was the last time that an American president used the Metropolitan Museum of art or the National Gallery of Art as a similar backdrop to State visits?

To remain competitive and constantly be noticed, American museums through their lobby group, the AAMD, maintain good relations with Dr. Mikhail Piotrovsky, and his superiors in the Kremlin, so as to continue to have access to Russia’s cultural riches and to be able to share bragging rights with Russian museums when staging exceptional exhibits.

One of Dr. Piotrovsky’s early allies was Thomas Krens, then director of the Solomon Guggenheim Museum in New York, to whom he had asked for advice in creating joint projects that would be of direct benefit to the Hermitage (hence the Russian government) and to American museums.

Piotrovsky's thinking, his vision for the Hermitage is interdependent with that of American cultural institutions. But he does not always share their policies regarding repatriation of looted antiquities to source nations. In an interview that he gave to a Russian news outlet in 2013, Piotrovsky preferred that looted antiquities should only be returned with a court order, seemingly balking at the bilateral talks which led American museums to repatriate looted artifacts to source nations. “American museums should stop giving back various antiquities to the Italians and Greeks without court rulings.”

Piotrovsky is a fierce advocate of the globalist, universalist museum vision, which pretends to transcend all politics. Conversely, he is equally a fierce opponent of “deaccession”, which also includes, restitution of looted cultural assets. In his words, “Deaccession is wrong. A museum is a monument, an organism of history.”

In a 2009 statement issued by the Woodrow Wilson Center, Piotrovsky was described as being totally committed “to cultural diplomacy with the United States.” The Hermitage Museum Foundation is one of the instrumentalities through which these ties are expressed. Does this commitment go as far as seeking to exert influence on the legislative process of the US Congress and encouraging the passage of bills that favor Russia’s position as a global cultural lending power?

In 2011, when a US Federal District Court issued a judgment against Russia, Piotrovsky cancelled all scheduled and future loans to American museums. In his words, he advised American museum directors to “go to the State Department. The problem has to be solved. The year 2013 was declared the year of Russia and the U.S. Now the established cultural relations are under threat.” The reassurances offered by American museum directors to the Russians that the immunity from seizure procedures at the State Department were sufficient to protect Russian loans did not satisfy Piotrovsky.

In short, Piotrovsky, as Russia’s cultural ambassador, works very closely with his American counterparts to ensure that their vision of how museums should steward their collections, even the looted ones, are one and the same, in order to ensure proper cultural relationships in step with Russia’s views of the inalienability of cultural objects in museum collections, a view, by the way, that is routinely echoed and upheld by most European museum directors and their governmental overseers.

S.3155 gets the American museum world one step closer to conform to this arcane view of museum governance and its passage harmonizes AAMD’s vision with that of its European partners.

The new cultural imperialism?

Russian activity on the plundered art blog

by Marc Masurovsky

What could be so interesting about the “plundered art” blog that it has attracted a blizzard of pageviews unlike anything seen since the blog first started in 2010? The mission of this cultural blog has always been and will always be: to document and discuss acts of cultural plunder, the restitution of looted art, and the ethics of museum administrators worldwide.

This digital onslaught of “visits” to the plundered art blog has come from Russia. It coincides with the December 5, 2016,  publication of HARP’s study detailing the inability and/or unwillingness of the US Department of State to conduct provenance research when considering requests by foreign lenders for certificates of immunity from judicial seizure that provoked the Russian onslaught. Since then, the story has received more than 4000 pageviews. In our world, that number falls outside the range of “normal” readership on the plundered art blog. We’re happy if we get 2-300 pageviews in a month for a single article.

At the time of publication of the aforementioned article, the US Senate was considering a bill called S. 3155. This bill makes it possible for foreign lenders to obtain immunity from seizure for the objects that they consider lending to US museums. The American museum directors’ lobby, enshrined in the Association of American Museum Directors (AAMD) has been struggling for four years to pass such a law through the Senate. Twice defeated, the AAMD chose the “submarine” strategy. No publicity, no public discussion, just silent lobbying. It also obtained the good services of Mr. Sneak Attack himself, Senator Chuck Schumer, a “Democrat” from New York State, to shepherd the bill through the Senate.

Why would the Russian government be so concerned with an American administrative rule that ensures that works of art from abroad are not seized while on display in an American museum? The procedure in and of itself should be a sufficient guarantee that art works from Russian institutions will be adequately protected while on display in the United States. Apparently, that does not suffice. In a nation like Russia and perhaps other countries where the State oversees, to a lesser or greater extent, the cultural arena, explicit statements by national legislatures count more than an administrative rule. This might explain the motivation of the AAMD to go for the jugular and ask the US Senate to pass a law that enshrines the principle of immunity from judicial seizure as a clear expression of an American cultural policy that officially does not exist. The immunity from seizure procedure has been in place for decades, overseen and enforced by the US Department of State. So why pursue legislation that repeats pretty much what the State Department already does on a weekly basis?

There is no need to show up with reams of documents and thousands of emails to prove Russia’s interest in S. 3155. It is basic common sense to argue that it is in the interest of the Russian government that the AAMD should succeed in pushing S. 3155 through the US Senate.

And it did succeed, before the sun rose on December 10, 2016.

The AAMD’s success in the Senate should beam a strong enough signal to Vladimir Putin that American museum directors are doing their all to assuage him and to convince him to reverse his decision on the cultural loan freeze imposed by Russia since 2011.

S. 3155 will sterilize the American cultural environment at the exhibit level whereby all objects on display loaned by foreign institutions will not be subject to a claim for restitution by any aggrieved party. A perfect rendition of the absolutist idea that “Culture transcends History” as Dr. Mikhail Piotrovsky, head of the Hermitage Museum, would have you note, an idea in line with the philosophy of “globalism” touted by the world’s leading museum directors and their governments according to which the museums they lead are the sepulchers of culture and art. We should worship them and thank them for “safeguarding” samples of the world’s best art and most significant cultural artifacts. The globalist museum world believes in the free exchange of artistic and cultural objects without any impediments or restrictions placed by governments and their institutions. Globalists refuse to allow history and all of its abject manifestations--civil wars, military and political upheavals, economic dislocation, ethnocide, genocide, and other mass expressions of human cruelty—to interfere with their ability to acquire and display objects, irrespective of their origin, which means, irrespective of their provenance, of their history. Provenance research, for these institutions, is an option to be exercised when needed.

Governments, including the American government, have been complicit in allowing their museums to acquire and exhibit willy-nilly. Their ethically lax behavior emboldens theft and plunder. Once illicitly-obtained objects enter a museum’s collection, they are only rarely removed as restitutable items to their rightful owners. The United States government, by its very inactions, refuses to compel American cultural institutions which harbor looted cultural objects to restitute them to their rightful owners. Although looting is publicly condemned as a reprehensible criminal activity, its fruits are protected once they enter cultural institutions. This paradox is alive and well and has been so for decades. S. 3155 is but a mere expression thereof.

Public outrage against looting may be universal but when a museum accepts the fruits of such criminal acts, there is generally no effort to force it to disgorge those looted objects and return them to their rightful owners. S. 3155 confirms that absolutist, Statist approach to culture.

Now that the US Senate has passed S. 3155 and President Barack Obama has signed it into law, the American museum community has proven that the US does not really need a ministry of culture, because the AAMD, with the blessings of the US Congress, acts as the de jure cultural arbiter of the nation’s cultural institutions in line with the Federally-controlled Smithsonian Institutions; the US Senate and the US government are there to do its bidding. Put another way, the museum directors’ lobby usually gets what it wants, much like the National Rifle Association.

The U.S. Department of State Is Structurally Unable To Perform Appropriate Provenance Research On Immunity From Seizure Applications Submitted By Foreign Museums

by Marc Masurovsky and Pierre Ciric[1]

The Holocaust Art Restitution project (“HARP”) initiated research into the State Department’s ability to perform appropriate provenance research on immunity from judicial seizure requests submitted by foreign institutions. From the documents provided by the State Department through a Freedom of Information Act request, HARP analyzed: how the State Department verifies provenance research conducted by the borrowers and lenders for the object(s) under consideration; how the State Department verifies claims of due diligence made by both lenders and borrowers for objects under consideration for immunity from judicial seizure; and how the State Department awards determinations of “cultural significance” and “national interest”. HARP concludes that the immunization from judicial seizure application process relies almost exclusively on attestations made by the lenders, the borrowers, the country desk officers, and the unit of the State Department which certifies cultural significance. There is no empirical process the State Department follows to verify provenance research conducted by the borrowers and lenders. The State Department essentially relies on the good faith of both the borrowers and the lenders to attest to their holding good title to the cultural objects under consideration and that there is no basis for a third-party challenge on the grounds that the objects being offered for display were looted or misappropriated. 

[The material contained herein is subject to the copyright laws of the United States and cannot be reproduced without the prior written permission of the Ciric Law Firm, PLLC and of the Holocaust Art Restitution Project. Copyright © 2016]

INTRODUCTION

In 2014, the Holocaust Art Restitution Project (“HARP”) initiated research on the U.S. Department of State’s (“State Department”) ability to perform appropriate provenance research on immunity from seizure requests submitted by foreign museums the Immunity from Judicial Seizure statute, 22 U.S. § 2459 (IFSA). To accomplish this research, HARP submitted a Freedom of Information Act (FOIA) request to the State Department. Following the State Department’s response, HARP analyzed the State Department’s provenance research process and its procedures for determining the soundness of the borrowing institutions’ applications to immunize objects coming from foreign lenders’ collections.

STATUTORY AND ADMINISTRATIVE FRAMEWORK

The IFSA protects from seizure or other judicial process certain objects of cultural significance imported into the U.S. for temporary display or exhibition. The State Department is designated to administer the statute.

Under the statute, (1) the object must be a of cultural significance, (2) there must be an agreement between the lender and “one or more cultural or education institutions within the United States”, and (3) the loan must be for temporary exhibition in the U.S. at a cultural exhibition “administered, operated, or sponsored, without profit, by any such cultural or educational institution.”

The State Department provides an application procedure and checklist.  Based on this checklist, the following items are to be included with an application:

1. A list of expected places and dates of exhibition;

2. A specific statement of whether or not “the exhibition is to be administered, operated or sponsored without profit to the borrowing or participating institutions”;

3. A schedule of the objects to be imported for which the applicant is requesting determinations under § 2459;

4. A scholarly statement establishing the cultural significance of the imported objects;

5. A statement concerning the provenance of works to be borrowed, as follows: “The applicant certifies that it has undertaken professional inquiry—including independent, multi-source research—into the provenance of the objects proposed for determination of cultural significance and national interest. The applicant certifies further that it does not know or have reason to know of any circumstances with respect to any of the objects that would indicate the potential for competing claims of ownership [except as described below. For the objects for which circumstances exist that would indicate the potential for competing claims of ownership, the following is a description of such circumstances and the likelihood any such claim would succeed].”

6. Facts supporting an assertion that all U.S. participants are cultural or educational institutions, such as an organization’s current IRC § 501(c)(3) determination letter;

7. A copy of each “agreement entered into between the foreign owner or custodian thereof and the United States or one or more cultural or educational institutions within the United States providing for the temporary exhibition…” of the object(s), a copy of any agreements with participating museums or other U.S. cultural or educational institutions, and a copy of any agreements between a foreign owner and a foreign custodian;

8. Copies of all related commercial agreements between any or all of the U.S. institutions and the foreign owner/custodian or other parties; and

9. The contact person for the application, and his or her telephone number and e-mail address.

FOIA REQUEST

On March 5, 2013, HARP submitted a FOIA request to the State Department, seeking information on the provenance research process associated with documents “regarding any grants of Immunity from Seizure Under the Judicial Process of Cultural Objects Imported for Temporary Exhibition of Display under 22 USC § 2459.” The FOIA request further sought “records of the Bureau of Educational and Cultural affairs for any documentation, policy memoranda, and fact finding determinations for any final determinations by J. Adam Ereli, Principal Deputy Assistant Secretary, Bureau of Educational and Cultural Affairs, Department of State under the following authority by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. § 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681, et seq.; 22 U.S.C. § 6501 note, et seq.), Delegation of Authority No. 234 of October 1, 1999, and Delegation of Authority No. 236-3 of August 28, 2000 (and, as appropriate, Delegation of Authority No. 257 of April 15, 2003).”

The purpose of the FOIA request was to elucidate and clarify to what extent the State Department resorted to due diligence “best practices” in determining whether cultural objects about to be displayed in U.S. museums and libraries earned the “culturally significant” label in “the national interest.”

Key to this process is the State Department’s ability to conduct independent provenance research on objects being considered for immunity from judicial seizure, should a third-party claim arise demanding the restitution and/or repatriation of a presumed looted cultural object included in the submission for immunity from judicial seizure.

At the heart of the FOIA request lies HARP’s concern that the State Department is structurally ill-equipped to make such determinations and essentially relies on the word of both the borrower and the lender to attest to their holding good title to the cultural objects under consideration and that there is no basis for a third-party challenge on the grounds that the objects being offered for display were looted or misappropriated without the consent of the rightful owners and without any subsequent restitution of the looted or misappropriated objects.

After negotiations, which lasted almost a year, HARP obtained a schedule of immunity from seizure grants from the State Department, for a three-year period. As a result of the huge cost and time associated with producing documentation for each grant of immunity from seizure over a three-year period, the State Department and HARP reached an agreement in 2014 to obtain the submission of 12 immunity from seizure applications. On June 11, 2014, the State Department produced several hundred pages of documentation regarding the 12 immunity from judicial seizure procedures for cultural objects on loan to U.S. institutions from abroad. A list of the document received as part of the FOIA request is contained in Exhibit A.

DATA AND METHODOLOGY
HARP’s concern with the grants of immunity from seizure rests on the State Department’s ability to determine if, in fact, the art objects proposed for immunity from judicial seizure have ownership histories which do not suggest that the objects’ title might be challenged by an aggrieved party because the object had not been properly restituted to its rightful owner.

The State Department supplied to HARP documents for art objects loaned by foreign institutions to be displayed in various museums and other institutions in the U.S. Each grant of immunity from judicial seizure is provided to a borrowing institution requesting that the objects be immunized so as to enable their display in the U.S. without fear of seizure resulting from a third-party claim.

HARP wished to ascertain if the State Department had a procedure in place to verify independently from both the borrower and the lender the ownership history of each object being proposed for immunization. The lender provides information on the object to the borrowing institution. That information, in turn, is incorporated into the application for immunity from judicial seizure submitted by the borrowing institution. The latter certifies that it has conducted professional inquiry—independent, multi-source searches—into the ownership history of the objects under consideration for immunization.

FINDINGS

1. Volume of Applications

Initially, HARP obtained a schedule of immunity from seizure grants from the State Department, for a three-year period. We counted almost 280 grants over the three-year period, so on average, the State Department had issued two such grants or certificates per week. First, it is astounding to observe that the State Department had issued this many grants of immunity or certificates per week. Each certificate covers anywhere from one object to hundreds of objects, depending on the complexity of the loan serving an exhibition on U.S. territory.

Provenance research is a complex procedure, as attested to by museum professionals, and takes significant time. In such a short period of time, it is virtually impossible to perform an independent assessment of whether the history of ownership of the objects being considered for immunity from judicial seizure is free from any disruption of title that might have been produced by an act of looting or misappropriation in the 19th and 20th centuries. More importantly, it would be next to impossible to assess, in that time period, whether these objects had been properly returned to their rightful owners before entering the lenders’ collections.

2. Documentation

Throughout the State Department’s response, each application for immunity from judicial seizure included at least the following types of documents:

1/ a copy of the notice of application in the Federal Register;

2/ a text of the public notice of application;

3/ a request from the borrower to the State Department to make a determination of “cultural significance” and that the exhibit is in the “national interest”. The request is in the form of a letter to the Assistant Legal Adviser for Public Diplomacy and Public Affairs. Each applicant has provided the same letter with some notable exceptions. It suggests that the “timely publication of these determinations [cultural significance and national interest] will facilitate the immunization of the objects under consideration from judicial seizure. The terms spelled out in 22 USC § 2459 must be fully satisfied in order to obtain the immunity from judicial seizure. In the case of Princeton University Art Museum, the application was submitted as “a courtesy” to the lender.

The application for immunity from judicial seizure is sent to ECA/PE/C/CU, which provides its clearance for “cultural significance.”

The national interest determination appears to be made at the Country Desk for the lending nation. In the University of Chicago Library application the Country Desk for Switzerland “offered its national interest clearance.” In the case involving the Maya object exhibit at Princeton University Art Museum, the Desk Officer for Australia was asked to make the national interest determination.

4/ a list of objects to be exhibited by the borrower. In some instances, both the borrower and the lender submitted a list of objects covered by the application for immunity from judicial seizure.

5/ correspondence by mail and/or email between the borrower and the State Department regarding the application for immunity from judicial seizure

6/ additional background about the proposed exhibit submitted by the borrower.

Following HARP’s FOIA request, it is impossible to assert whether or not the State Department submitted every document to HARP regarding each application for immunity from judicial seizure. The following are additional documents not present in every application which were submitted by the borrower to the State Department in support of the application for immunity from judicial seizure.

In two instances, the borrowers, the Frick Collection and the Museum Of Fine Arts, St. Petersburg, FL, submitted a “scholarly statement in support of the application for determination of cultural significance of the objects covered by the application for immunity from judicial seizure.

In one instance, the borrower, Metropolitan Museum of Art, submitted an “immunity file checklist” as part of the borrower’s application for immunity from judicial seizure. The checklist included eight different types of documents that constituted a complete application for immunity from judicial seizure:

1/ list of imported objects

2/ copies of agreements (borrowers/owners or custodians)

3/ copies of related commercial agreements

4/ places and dates of exhibition

5/ “without profit” statement

6/ statement as to provenance

7/ scholarly statement as to cultural significance

8/ U.S. participants are cultural/educational institutions (i.e., IRC 501(c)(3) letter)

In one instance, the borrower, the Milwaukee Art Museum, submitted a table of contents/checklist as part of the borrower’s application for immunity from judicial seizure.

In one instance, the borrower, Princeton University Art Museum, submitted a one-page statement attesting to the “cultural significance” for a single object covered by the application for immunity from seizure. The statement was signed by Dr. Bryan Just, curator and lecturer in the Art of Ancient America at the Princeton University Art Museum.

In one instance, the borrower, the University of Chicago Library, submitted a one-page “provenance statement” in support of its application for immunity from judicial seizure.

In reviewing this documentation, HARP assumed that there was a standard process for foreign lenders to apply for immunity from judicial seizure. We noted deviations from that standard which U.S. institutions supplied when we obtained the application check list of documents. We observed that, even in the application process, applicants used different strategies and the quality of the documents varied regarding the provenance information about the objects under consideration.

We also observed how the State Department handled the cultural significance and national interest determinations, even when the arguments proffered by some of the borrowers were specious regarding cultural significance and national interest.

Since the objects come from foreign lenders, one should presume that the borrower has requested from the lender documentation detailing the ownership history of the objects being proposed for immunization. There is no indication that such requests were made in the application we looked at. The provenance information provided by the lenders ranges from minimal to detailed. There is no possible way for the State Department to accept the borrower’s warranty of provenance without doing so on blind faith.

Missing documents are hinted at in correspondence between the borrower and the State Department. For instance, with respect to the application submitted by the Fine Arts Museum of San Francisco for an exhibition entitled “Impressionism on the water”, the Museum’s exhibition coordinator, Hilary Magowan, notified the State Department on April 26, 2013, that she was attaching to her email the loan agreements from nine foreign lenders to the exhibition. HARP received only the correspondence but not the loan agreements.

3. Provenance determination

As to provenance statements, the borrowers all provided boiler plate language attesting that they had conducted “professional inquiry—including independent, multi-source research—into the provenance of the objects,” certifying that “we do not know or have reason to know of any circumstances with respect to the objects that would include the potential for competing claims of ownership.” In all cases, no descriptive statement of how provenance research was conducted or how many independent sources were consulted to support their assertion.

The University of Chicago Library made no reference to having undertaken professional inquiry into the provenance of the objects, but emphasized that there was no evidence of any competing claim or past litigation that would challenge ownership to these objects being considered for immunity from judicial seizure.

The Museum of Fine Arts in Saint Petersburg, Florida, applied for immunity from judicial seizure for an exhibition of ancient Egyptian artifacts coming from the Fondation Gandur in Geneva, Switzerland. In submitting its application, it attested that it had undertaken professional inquiry “into the provenance of the objects.” The borrower provided only a descriptive list of the objects—101 in all—without indicating how, where, when and from whom Mr. Gandur had acquired these objects. It is difficult to imagine the Museum of Fine Arts conducting such intricate research on 101 objects in less than a year’s time.

The Frick Collection submitted a list of 58 objects from the Courtauld Gallery in London, England for its exhibit “Mantegna to Matisse: Master Drawings from the Courtauld Gallery. Each object contained a detailed provenance with an occasional reference to a certificate from the Art Loss Register for items that might have proven to be problematic.

The Fine Arts Museum of San Francisco submitted a list of over 100 objects that it planned to exhibit under the title “Royal Treasures from the Louvre: Louis XIV to Marie-Antoinette”. It asserted that it had conducted professional inquiry into the provenance of the objects under consideration for immunity from judicial seizure. There again, it is impossible to ascertain how the research could have been conducted without requesting from the Louvre the curatorial files for each of the objects. No mention was made on how the independent, multi-source research was undertaken. Neither does the State Department ask for justification of this assertion. The Louvre inventory only provided the name and date of the donation or sale to the Louvre for the objects concerned, point of departure for any provenance research effort.

In fact, the Fine Arts Museum of San Francisco received a letter from a claimant seeking provenance information on artworks which may match artworks subject to a claim before the CIVS in France, after the immunity from seizure grant was issued and the exhibit started. The claimant provided a copy of the letter to HARP. In its response, the Fines Arts Museum of San Francisco was unable to provide any provenance information to the claimant beyond the inventory information provided by the Louvre, which included no actionable information susceptible to confirm or dismiss a potential claim.

4. Research standards

Provenance research is an inter-disciplinary process that extends far beyond the reaches of conventional art history. At the very minimum, its purpose is to determine the history of an art object from the time of its creation to the present holder, be it a person, organization, corporation, museum, or government entity.

In the past twenty years, this type of research has become synonymous with ferreting out evidence of theft and other criminal acts which separated the rightful owner from the object’s possession without his/her consent. The responsibility of cultural institutions and art market players is to ensure that they do not engage in activities which enables the trade, accessioning, or display of stolen cultural assets.

When the State Department envisions the grant of immunity from judicial seizure, it warrants that provenance research did not indicate that the objects under consideration showed any sign of contested title due to theft or other forms of misappropriation.

To do so, an institution must check all available public and proprietary sources of information which might contain information that would shed light on past ownership of the concerned objects. Art historical sources need to be consulted to verify or corroborate the information provided by the lenders as to the ownership history of the objects. Sometimes, one would have to consult specialized monographs about the creators of the objects if the catalogues of the artist’s works do not include any or little information about the objects. Part of the provenance research effort requires one to understand the circumstances under which the object changed hands during turbulent historical moments that might have led to a forced displacement of the objects from a rightful owner to an illicit owner, due to an absence of consent for the transaction to take place. This can only be accomplished by checking historical sources of the period during which the objects changed hands.

If the objects are ancient artifacts, extracted during excavations in “source nations,” it is critical to verify that the excavations were authorized and the objects were exported legally to their new owners. Various documents can be used to confirm the extraction and the exportation of the objects. Customs documents, archaeological notes and dig registries, are some of the documents that might be available to do so.

The lenders’ documents on the objects need to be verified as well since they might contain crucial information about the ownership histories which are not published in the official literature surrounding these objects. This is fairly common in the museum world.

There is no evidence to show that neither the lenders nor the borrowers, in most instances, engaged in provenance research as outlined above. There is also no evidence that the State Department made any effort to verify independently that the information attested to by lenders and borrowers was true and accurate.

The borrower never explains how their research is conducted, which sources are consulted, and how it reaches the determination that all objects under consideration are clear of competing claims. The State Department seemingly relies on the certification provided by the borrowing institution without seeking some form of document explaining how those determinations were made.

5. The State Department has granted immunity in the face of existing claims

In 2003, 14 works of art by Kazimir Malewicz were exported to the United States by the Stedelijk Museum of Amsterdam to be party of a temporary exhibition at the Solomon R. Guggenheim Museum in New York and the Menil Collection in Houston. Malewicz v. City of Amsterdam, 362 F. Supp.2d 298, 303 (D.D.C. 2005). Following a request by Amsterdam that the works of art be granted immunity from legal process with in the United, the Malewicz heirs filed an objection. Id. However, the State Department “determined that the objects were of cultural significance that that their temporary exhibition was in the national interest.” Id. (citing 68 Fed. Reg. 17852-01, April 11, 2003.). The State Department granted immunity from seizure to the 14 works of art by Malewicz and therefore “immune from seizure and other forms of judicial process that might have had the purpose or effect of depriving the Guggenheim or the Menial Collection (or any carrier) of custody or control of the artworks while in the country.” Id. Before the end of the loan in Houston, the heirs of Malewicz filed suit against the City of Amsterdam to recover the value of the works of art or, in the alternative, the return of the works of art. Id. Clearly, the State Department knew of the claims by the Malewicz heirs and did nothing to assist them. Instead, the State Department granted immunity from seizure under the IFSA with full knowledge of a pending claim against some of the artworks.

CONCLUSION

HARP’s FOIA request demonstrates that the State Department has no in-house procedure by which to corroborate the borrower’s claims of provenance research. Neither does it have the possibility of verifying the provenance information supplied by the lenders. By inference, HARP subsumes that State Department accepts the borrower’s certifications that the lender’s ownership of the objects being proposed for immunization is verified and there will be no competing claims filed by third parties to challenge the lender’s title to the immunized objects.

The due diligence checks on art objects borrowed from foreign lenders to be exhibited in U.S. institutions are left to the borrowers to conduct. Based on the documentation supplied to HARP by the State Department through the FOIA disclosure, each borrower used boiler-plate language—which is customary—to attest to independent, multi-source inquiries in conducting provenance research on objects to be covered by a grant of immunity from judicial seizure.

In most instances, some detailed provenance information was supplied by lenders (not borrowers) as part of the application for immunity from judicial seizure. However, in most instances, the borrowers relied on the certifications of good title from the lenders to certify that there was no information that it knew of that would raise doubts on the ownership of the objects being covered by the immunization from judicial seizure. HARP is highly skeptical of the claim by the borrowing institutions that they conducted professional inquiries, including independent, multi-source research to ascertain the provenance of the objects offered for exhibit by the foreign lending institutions.

Moreover, the determinations of cultural significance and national interest appear to be pro forma, and are not based on any empirical evidence. It is unclear how country desk officers at the State Department are qualified to determine whether art objects being loaned to U.S. institutions represent a “national interest.” HARP is unaware of the criteria used by country desk officers to make such determinations. In several instances, these determinations of cultural significance and national interest appeared to be connected to the uniqueness of the exhibits. First-time loans from foreign lenders to U.S. institutions was the most compelling argument. Therefore, the State Department accommodates borrowers and lenders and has no procedure in place to assess independently the quality of the applications and the veracity of the borrowers' statements. It is unable to challenge the provenance information supplied by either or both parties.

Based on the information provided by the State Department through the FOIA disclosure, HARP concludes that the immunization from judicial seizure process relies almost exclusively on attestations made by the lenders, the borrowers, the country desk officers, and the unit of the State Department which certifies cultural significance. There is no empirical process in the granting of immunity from judicial seizure for art objects that allows HARP to conclude that the State Department is in a position to challenge the certifications made by the borrowers.

If the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S. 3155) becomes law, the systemic inability of the State Department to ensure that the applicant certification is properly supported or documented would create a significant risk for stolen artworks to come into the country through temporary exhibits.

EXHIBIT A

Documents Obtained through the FOIA Request from the State Department
Exhibit: Fine Arts Museum of San Francisco [Royal Treasures from the Louvre: Louis XIV to Marie-Antoinette]

1/ federal register
2/ public notice
3/ additional background

4/ immunity from judicial seizure application
5/ inventory supplied by the lender-Louvre Museum
6/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
7/ correspondence between borrower and State

Exhibit: Frick Collection [Mantegna to Matisse: Drawings from the Courtauld Gallery]

1/ Federal register
2/ public notice
3/ additional background
4/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4a/ scholarly statement in support of application for a determination of cultural significance
5/ list of foreign loans and provenance

Exhibit: Museum of Fine Arts, St. Petersburg, FL [Ancient Egypt: Art and Magic: Treasures from the Foundation Gandur pour l’Art, Geneva, Switzerland]
1/ Federal register
2/ public notice
3/ revised request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4/ borrower press release
5/ checklist of objects
6/ initial request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
7/ appendix checklist possibly supplied by borrower in spreadsheet fashion with photographs
8/ scholarly statement supplied by borrower in support of application for a determination of cultural significance
9/ correspondence between borrower and State

Exhibit: Metropolitan Museum of Art [Matisse: In search of true painting]
1/ correspondence between borrower and State
2 /press release by borrower
3/ federal register
4/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
5/ checklist of items with provenance supplied by borrower
6/ public notice
7/ additional background
8/ list of domestic-owned objects in the exhibit—no provenance given except the name of lending institutions

Exhibit: Metropolitan Museum of Art [Woman in Blue, Against blue water, by Edvard Munch]
1/ federal register
2/ public notice
3/ additional background
4/ immunity file checklist
5/application by borrower for immunity from judicial seizure with full provenance

Exhibit: University of Chicago Library [Swiss treasures: from biblical papyrus and parchment to Erasmus, Zwingli, Calvin and Barth]

1/ additional background
2/ provenance statement—more like a certification—submitted by the borrower
3/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4/ public notice
5/ checklist from multiple lenders containing statements of curatorial significance and history of ownership for each object
6/ federal register

Exhibit: Princeton University Art Museum [Dancing into Dreams: Maya Vases from the Ik’Kingdom]

1/ federal register
2/ public notice
3/ additional background
4/ cultural significance certification statement
5/correspondence between borrower and State
6/ exhibition checklist submitted by borrower
7/ request for immunity from seizure as “a courtesy” to the lender.

Exhibit: Fine Arts Museum of San Francisco/Peabody Essex Museum [Impressionists on the water]

1/ federal register
2/ public notice
3/ additional background
4/ checklist/schedule of exhibit items submitted by the borrower
5/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
6/ correspondence between borrower and State
7/ inventory/checklist contains deleted names of private collectors who loaned their works to the exhibit.

Exhibit: Milwaukee Art Museum [Impressionism: Masterworks on paper]
1/ federal register correspondence
2/ public notice
3/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4/ table of contents/checklist for applicant
5/ additional background
6/ schedule of works and their source/not provenance

Exhibit: Fine arts Museum of San Francisco [Girl with pearl earring: Dutch paintings from the Mauritshuis]

1/ correspondence
2/ request for cultural significance and national interest determinations
3/ certification of provenance included in its application for immunity
4/ federal register
5/ public notice
6/ additional background













[1] Marc Masurovsky is a historian, researcher, and advocate, specializing in the financial and economic underpinnings of the Holocaust and World War II. Marc holds a B.A. in Communications and Critical Cultural Studies from Antioch College and an M.A. in Modern European History from American University in Washington, DC. He worked at the Office of Special Investigations of the US Department of Justice researching Byelorussian war criminals. Marc advised the Senate Banking Committee in the mid-1990s on the involvement of Swiss banks in the Holocaust, and then lent his expertise to plaintiffs’ counsels suing Swiss banks on behalf of Holocaust survivors. Since 1997, Marc has focused his attention on the fate of objects of art looted by the Nazis and their Fascist allies, and was a founder of the Holocaust Art Restitution Project. He played a major role in the January 1998 seizure of Egon Schiele’s “Portrait of Wally” and “Night City III” at the Museum of Modern Art of New York and was a director of research for the Clinton-era Presidential Advisory Commission on Holocaust Assets in the United States (PCHA). Since 2004, Marc has overseen the creation, development and expansion of a public online database of art objects looted in German-occupied France that transited through the Jeu de Paume in Paris from 1940 to 1944.

Pierre Ciric is a founding partner of the Ciric Law Firm, PLLC, a boutique law firm specialized in commercial litigation services for businesses, nonprofit organizations and individuals, and in cultural heritage law. Pierre received his J.D. from New York Law School. Pierre represents French, American and European business and individual clients in the United States. Most notably, Pierre recently successfully settled a Nazi-looted art case representing the heirs of a French Jewish family seeking to obtain restitution of a Camille Pissarro painting from an American university. He also obtained restitution of an important “Judaica” religious object on behalf of an Eastern European Jewish community from an American collector. Pierre is a lawyer admitted to the New York Bar. He is the Vice President of the French American Bar Association, a member of the Professional Ethics Committee of the New York County Lawyers Association, and a Vice President of the New York Law School Alumni Association.

Oppose Senate Bill 3155 which legalizes the display of looted art in the United States.

by Marc Masurovsky

Click here to voice your opposition.

If passed, Senate Bill 3155, sponsored by American museum lobbyists and art market players, is a dream come true.

S. 3155 makes it possible for an American museum or, for that matter, any institution located in the United States to borrow any object from any part of the world without fear of judicial seizure, resulting from a claim filed by a victim of cultural theft.

On paper, it all sounds innocent. If it is, how do you explain the total silence emanating from the American museum community’s lobbying arm, the Association of Art Museum Directors (AAMD), which has not uttered a single public word in its campaign to press for passage of S.3155. The AAMD has essentially refused to engage in a public discussion about the merits of S. 3155 through Senate hearings or in the public sphere. Clearly, its sponsors in the Senate have also agreed not to solicit opinions from the public and those most likely to be affected by the passage of this bill—source nations, indigenous groups, victims of cultural theft.

S. 3155 ensures that acts of plunder, whether State-sponsored or not, against entire groups and communities, resulting in systematic looting and misappropriation of cultural assets, do not stand in the way of museums’ ability to borrow freely from art collections across the globe.

There are numerous countries which have suffered from autocratic, dictatorial, even tyrannical governments and regimes which have cost countless lives, suppressed individual freedoms and resulted in untold losses of personal property through expropriation, misappropriation, and outright theft. Many objects displaced during these events have never been returned to their rightful owners. The more desirable ones have been sold and resold on the international art market, or have entered art collections stewarded by the very governments which enabled and sanctioned these illegal confiscations and expropriations.

There are numerous archaeological sites around the world which have been illegally exploited and whose ruins have yielded untold numbers of artifacts recycled through countless intermediaries before reaching museum collections, auction houses, and private dealers in “the West”, including North America.

Indigenous peoples across the globe have been subject to continual harassment and persecution by the governments of the countries in which they reside, victimized by violence and by illegal removals of their sacred objects. These looted objects, often used for ritual practices, find their way into “Western” collections through the illicit trade, once they have been reclassified as "art."

Museums thrive on attracting visitors. To do so, they must constantly borrow beautiful, rare, objects from domestic and foreign collections and highlight them in exceptional exhibits for the public to come and enjoy. We all love to go to museums, but does that excuse their willingness to be be a party to theft and plunder?

It appears so.

Is S. 3155 necessary?

In practical terms, there is no need for S. 3155. The US Department of State has in place a system by which foreign lenders and their American counterparts can request a certificate of immunity from seizure to allow them to lend one or more objects to American institutions for the purpose of an exhibit. The State Department issues these certificates several times a week. For better and for worse, the immunity system works.

So, why does one need S. 3155? There is a political motive underlying its introduction in the Senate. For years, US museums have been unable to borrow masterpieces from Russian museums as a result of several court cases which were interpreted by the Russian government as a direct threat to their ability to lend works of art without fear of them being seized. Whether rational or not, these feelings have translated into a near-absolute freeze in Russian cultural loans to US museums.

Is the AAMD using S.3155 to signal the Russian government that, if passed, Russian museums should relax their stance on loans to the US?

The same reasoning can be applied to other governments with whom the US has had severe difficulties, like the Cuban government. Now that Fidel Castro is dead, all eyes are on that little island off the coast of Florida. The likelihood is quite high that art works confiscated from private Cuban collections will head to the United States. Again, S.3155 will make it possible for these confiscated works to be displayed and will deprive dispossessed Cuban families from being able to seek redress in US courts in order to recover their expropriated property.

The main sponsors of S.3155—Senator Orrin Hatch (Republican-Utah), and Senator Chuck Schumer (Democrat-New York)—are doing everything they can to have this bill passed before the end of 2016. So, time is of the essence to send a clear message to the Senate that this bill is unacceptable, indecent, unethical, and unnecessary.

If you agree that S. 3155 should not be passed by the US Senate, click here and voice your concern.

Overview of the first year of activity on the “plundered art” blog

In order to know who you, the readers of “plundered art”, are, Google provides a potent tool—Google Analytics—which provides a glimpse of the readership of a blog or a website. In the case of “plundered art”, the following can be said:

You, the readers of “plundered art”, are mostly women, followed closely by men. More than one third of you are at least 35 years old.

Your favorite posts were, in descending order of popularity:

1. Van Gogh's 1889 depiction of his mutilated self smoking a pipe—PR 144
2. The five Schiele drawings of Karl Maylander
3. Jacopo Zucchi, "The Bath of Bathseba": or how pieces of a story build a new story about the same story ex post facto
4. Nazi looted art conference at Lafayette College, Easton, PA: a debriefing (II)
5. Nazi looted art conference at Lafayette College, October 26-28, 2011: a debriefing (I)
6. In search of a triptych "Purificato Mariae" by Marco d'Oggione
7. MNR (Musées Nationaux Récupération) Notes—R 6 P « Femme au turban, » by Marie Laurencin
8. The Hemer case or how a claimant does not want to be a claimant
9. The Wildenstein reality check
10. French loot in Poland

You live in more than 1000 cities and towns located in 90 countries across 5 continents.

Many of you speak at least one of the following languages: English, French, Spanish, German, Italian, Dutch, Polish, Russian, Hebrew, Czech, Hungarian.

You work in global auction houses, multinational companies, national and supranational government agencies like the European Commission, the “Ministère des Affaires étrangères et européennes” in Paris, the National Academy of Sciences in Washington, DC, the United Nations, UNESCO, the US Department of Justice and the US Department of State.

On the academic front, you hail from universities, academies, and institutes in the Americas, the West Indies, Europe, and Asia.

You also work for international news agencies, libraries and archives, as well as world-renown art museums and galleries.

WOW!

Confessions of an art looting “expert” (I)

by Marc Masurovsky I must apologize for not having contributed anything to this blog in over two months. The reason is simple: a generic failure to think that there was anything meaningful to write about after having hatched more than 110 pieces for you to peruse at your leisure.

Why expose myself in this way to perfect strangers? It’s the 21st century thing to do, I guess. But in my case, I feel the urge to ‘out’ my private self enough so that you know with whom you are dealing. Writer’s block has not been the issue these past few months; instead, I have been bruising my head time and time again against a philosophical rock—to wit, the rock of restitution of cultural assets looted during the Nazi/Fascist years and recycled over the past seven decades through private hands and State-controlled entities with no likelihood that these objects will ever be identified, located, recovered, and returned to their rightful owners.

Why bother? The “mission” to locate and restitute looted cultural assets stolen during the Nazi years is so thankless at times that it is even painful to muse over its future. Our past is indeed our prologue but our present might just be our future unless we do something radical to transform it from complacent indifference and lethargy into a dynamic machine fueled by ethics, transparency, search for truth, a truth, a historical truth, the truth about these thefts, about the deliberate misappropriation of millions of cultural objects from the hands and homes of tens of millions of people during twelve long years of oppression, persecution, ostracism, incarceration, exploitation, impoverishment, eviction, expropriation, and more often than not, physical liquidation.

Why bother? That is the question that I ask myself every day when I wake up from a frazzled sleep. There are databases to expand and complete, there are new files to read and analyze, from which information must be gleaned, synthesized and shared with others. There are students to educate, there are faculty members to enlighten out of their impoverished understanding of cultural plunder, the complexities of the illicit trade in looted art and the perplexing paradoxes inherent to the quest for restitution. There are government officials to shake out of their slumber who are too afraid to move their limbs in a forward motion to make some progress, any progress, even infinitesimal progress, just enough progress so that we can say that there is progress in the international arena, of course, where else. Because in the United States, just as an example, there is a continuing state of stasis that makes it so convenient for the so-called “experts” to do the strict minimum and claim that “alles gut”—all is well—that we are making progress, geostationary progress that is—this is true across the board whether it be in the art world writ large, or among well-connected art historians with deep ties in private museums and elite circles who have claimed to be such experts in “Nazi confiscations” and “restitution” and other well-established academics, pundits and political pinheads, bureaucrats of all stripes spanning all agencies and institutions—for the most part, they are well-meaning but fundamentally ignorant and passive, always living in fear of the people upstairs whose scythes might sweep their heads off their fragile shoulders as soon as they make some progress forward on issues which should simply be ignored. The exception is the Office of Holocaust Issues at the US Department of State under new leadership. Most importantly and urgently, there are the rightful owners, the heirs and descendents of the victims themselves who seek an accounting by way of restitution.

Worst of all, there are those specialized bureaucracies that are finely tuned to the cause of remembrance, memory and education about the Holocaust and which are outspokenly silent about the taboo, the unspeakable, unmentionable, untouchable, mystifying topic of cultural plunder. God forbid that any such institution might wish to put a timid foot in front of the other and venture into the dark abyss of Nazi confiscations, Aryanizations, forced sales, expropriations of property, and the recycling of Jewish-owned wealth into ‘Aryan” hands as the fundamental pre-requisites of the dehumanization of entire Jewish communities, the final step before mass annihilation. God forbid that anyone would want to share that thought with the general public. My goodness, where would we be? What would happen to us? Would the sky fall on our heads? Would anti-Semites come crawling out of the ground and scream bloody murder against the Jews? Not really. It’s a bit like the story of Henny Penny, the hen who was convinced that the sky was falling on her head. It’s all in her head. It’s all in their minds. But until the Holocaust education and remembrance community of specialists and administrators signs up for mass therapy sessions, please do not hold your breath. Their august institutions are not likely to promote any programs that would enlighten the general public as well as themselves---they know so much already!—about the economics of the Holocaust and the fundamental tenet which declares unabashedly that one of the root causes of anti-Semitism is economic resentment of the ‘other.’

Did you ever stop and wonder why there are fewer than ten attorneys—yes! Ten attorneys in the entire nation of the United States of America who agree to represent victims of Nazi/Fascist cultural plunder. TEN! Not eleven, not twelve, not twenty. TEN…

Did you ever stop and wonder why there is not a single law firm in the United States that has a pro bono practice (free legal assistance) specifically aimed at Holocaust claimants who wish to reclaim looted cultural assets regardless of the monetary value of the looted asset proper?

Did you ever stop and wonder why there is not a single academic program in the United States which teaches students about plunder, economic crimes against persecuted populations during times of war, especially when acts of genocide accelerate the elimination of millions of men, women, and children from the face of the earth thanks to the active collaboration of countless individuals who see in the disappearance of the Jews a crime of opportunity, an opportunity for personal betterment, improvement and enrichment?

Did you ever stop and wonder why the museum community has not seen fit to establish professional training programs to enhance, refine, and improve the critical research skills of museum professionals in the esoteric arts of provenance research—the investigation into ownership histories of objects in their collections—rooted in a historical understanding of the displacements of cultural assets between 1933 and 1945?

Well, I’d be curious to know if you have answers to the aforementioned questions. If I have erred, I hope—no, I insist—that you point out my deviant ways so as to edify our reading public. But if you cannot correct me, then ask why we are at this stage of the game, two years after the Prague Conference of June 2009 on Holocaust-era assets, thirteen years after the Washington Conference on Holocaust-Era Assets of 1998 and the subsequent formulation of the sacred texts known as the Washington Principles?

There is no easy answer, is there? I didn’t think so. And I don’t blame anyone for not finding an easy answer.

Here I go again wondering: what to do? Is there an end in sight? Are we really going to achieve some modicum of progress, some truly measurable result which fosters research and restitution, transparency and ethics, higher learning and understanding, so-called “best practices” in the cultural arena? After all, the whole point of this ‘mission’ or ‘campaign’ is to close the books on the Second World War and the Nazi years, to clean up the mess left untended by thousands of officials and administrators in the Americas and in Europe who were focused precisely on recovering stolen objects and returning them, more often than not, to nations, not rightful owners. And yet, why should we care? Well, we do. Just like others care about climate change, the plight of penguins in the South Atlantic Ocean or polar bears in the Northern regions, we care about historical wrongs anchored in cultural plunder and the righting of those wrongs. C’est la vie….

Memorable quotes from US restitution officials, 1943-1955

Francis Henry Taylor
Source: Archives of American Art, Smithsonian Institution

“Public institutions disposing of trust funds could not very well connive in the liquidation of the artistic patrimony of Europe and act as public receivers of stolen goods.” 

—Francis Henry Taylor, director of the Metropolitan Museum of Art, New York, in a New York Times op-ed piece September 19, 1943

“…. People with looted objects in their possession are subject to federal law governing the transportation of stolen property over state lines.”

—July 23, 1946/Lieutenant Karasik, State Department official, regarding importation of art from occupied areas by US personnel

S. Lane Faison
Source: Williams Archives and Special Collections

“…[the] most barefaced type of looting and …everyone who took part in [these exchanges] must forfeit not only what he received (because that was stolen goods) but also what he gave (because he had knowledge of what he was receiving).”

—June 1, 1951/Lane Faison, Property Division, High Commission of Germany (HICOG), Munich Central Collecting Point, commenting on the exchanges conducted by Hermann Goering and the ERR to trade stolen Impressionists for more acceptable cultural assets.

“The restitution of looted art is an obligation of this Government under international law."

—May 19, 1955/Ardelia Hall, Arts and Monuments Advisor, US Department of State

Letter to Marilyn Henry concerning the return of 'Portrait of Wally' by Egon Schiele

Note: This letter was sent to the late Marilyn Henry in an effort to articulate complicated thoughts pertaining to the unsettling resolution of a decades-old battle to recover the 'Portrait of Wally' by Egon Schiele from the clutches of Mr. and Mrs. Leopold.  It constitutes mostly an attempt to sort out conflicting emotions and to restore a semblance of historical truth to an international story of racially-motivated theft, punctuated by a half-century of injustice towards a Viennese family whose sole crime was to be Jewish.

August 17, 2010

Dear Marilyn:

I debated even writing this note regarding the return of Wally to Vienna—the scene of the crime, as it were.

The ceremony on July 29 was emotional. After all, we did wait for 12 years to see a case closed that, had cooler, pragmatic, and ethical heads prevailed, would have been resolved a long time ago.

But, there were none of the above at the time of the ‘event’, the seizure of Wally at the Museum of Modern Art on that fateful Wednesday afternoon, in early January, on the eve of its planned departure for Europe. Had Wally left the United States, there would have been nothing to discuss, no strategies to implement. More to the point, there would have been no restitution law in Austria, of the kind that we now see today being implemented, albeit in a limited way, but in a more efficient manner than in most other countries that boast similar laws.

Indeed, not only would there have been no restitution law in Austria, but Randy Schonberg would not have recovered Maria Altmann’s fabled Klimt paintings which set astronomically high records at auction. Randy would still be wondering exactly how to approach the Austrian government and would be haunting the halls of the State Department looking for someone with enough spine to go and rattle a diplomatic saber at an indifferent Austrian government.

Worst of all, Dr. Leopold and his wife would continue to enjoy in apparent indifference to the suffering of Holocaust victims and their families, the pride and joy of their collection—so many Schieles with provenances that would make one’s hair raise on one end, to defy logic—in an unholy alliance with the Austrian government’s representatives on the board of the Leopold Foundation.

And, yet, most of the above did not come to roost because Wally did not go home in January 1998, as it was supposed to like an obedient child whose estranged biological relatives were clamoring to keep it in the US so that they could have their day in court and assert their rights to it.

I made the mistake of sitting in the same row as Frau Leopold and her coterie of dowagers. She snickered through the entire ceremony not four seats away from me. The same woman who together with her late husband, Dr. Leopold, prevented the Bondi family for more than 12 years from recovering Wally, on legal, moral and ethical grounds with the Anschluss and the Holocaust as the historical backdrop.

On July 29, my stomach turned while I saw the glitterati of New York City and of our own Federal government fawning over Frau Leopold, she who kept justice at bay for 12 years. Some might say that the time had come for reconciliation. Well, perhaps, we should just shake hands with former war criminals and collaborators and call it a day. Let bygones be bygones, right? After all, what is done is done, and so we should all move on. America loves stories of redemption, but they should not apply to the Holocaust.

My two heroes on the 29th of July were Andre Bondi and Robert Morgenthau. Andre because of his steadfastness and his family’s persistence in seeking what was rightfully theirs, in the face of total indifference to their cause in the late 1990s, except for one small group of irreverent folks based in Washington, DC. Those who comprise the Holocaust Art Restitution Project or HARP.

More on that later…

Robert Morgenthau will always remain an outsized mensch in my personal pantheon of individuals to look up to, true mensches. He inherited the best genes in the world, those of his father, Henry Morgenthau, one of the few in Franklin Delano Rooselvelt’s cabinet who stood up in explicit terms against National Socialism and Fascism when it was not fashionable to do so. Decades later, Robert stood up against the American museum establishment, the art world, complacent Jewish organizations, and a meek, passive Federal bureaucracy, more interested in accommodating America’s allies than standing up for a single citizen over a single painting that turned out to be property stolen during the Holocaust. Robert did the right thing. What he called a Hail Mary pass, was actually a calculated moment that did not come out of left field , but the outcome of a thoroughly well-rehearsed strategy that would not have been put into motion, had everyone else done their job to safeguard Wally and the rights of American citizens like the Bondi’s.

First off, the Departments of State and Commerce who, instead of considering the possibility that the Bondi Affair was worthy of note and thinking a bit harder about the implications of an inquiry with the Austrian government over property looted during the Holocaust, whose true owners are American citizens, chose to place the overarching national interests of the United States over those of its citizens. Granted, the logic is well entrenched in customary international law, but such logic has been mercilessly applied as a foil against Holocaust victims seeking redress since the late 1940s. In other words, the Federal government was simply being consistent with its stated policy not to intercede on behalf of Holocaust victims and their families in a forceful and meaningful manner.

While State and Commerce were not willing to modulate what was fast becoming an international incident, the Senate Banking committee leadership, under Senator D’Amato, had voiced its concern over the fate of Wally and contemplated some drastic action that would require the painting to remain in the US until its provenance could be sorted out in the interest of justice for Holocaust victims and their families. There too, the will to act quickly vanished, presumably under pressure from some unnamed notables close to the Museum of Modern Art and who also bankroll the World Jewish Congress. With State, Commerce, and the Senate Banking Committee running for cover, there was no one left to support the Bondis in their plea to keep the painting in the United States, at least long enough so that their side of the story could be heard in a fair and objective manner.

Except for HARP. Founded by Willi Korte, Ori Soltes, then director of the Klutznick Museum at B’nai B’rith in Washington, DC, and myself in September 1997, HARP’s mission was and continues to be to document the historical cultural losses suffered by Jewish owners during the 12 year reign of the Nazis. The Bondis had contacted Willi Korte and asked him to dig up the historical documentation surrounding the illegal seizure of Wally by Friedrich Welz and its subsequent wartime and postwar fate, which landed it in the hands of Dr. Leopold. Willi then turned to HARP for assistance and asked HARP to use whatever means possible to create sufficient pressure to keep the painting in the US.

Meanwhile, in late December 1997, Judith Dobrzinsky wrote a lengthy article for the New York Times on the Schiele exhibit and the brewing controversy surrounding Wally and another painting, Night City III, which was being claimed by the Reifs. However, in the same article, Judith also wondered whether venality had played a role in the Bondis’ decision to seek the return of Wally since they knew that the painting was then worth an estimated 2 million dollars.

With that type of adverse publicity, the Bondis had very few people to whom they could turn. Certainly no one in the Federal and legislative branches were willing to assist them. Jewish groups were pretending that they didn’t exist. And what was a District Attorney of Manhattan to do?

HARP, in the mean time, was seeking an accommodation with MOMA, a middle ground which would form the basis for a dialogue over the fate of the painting, as long as they could remain in the US. The general counsel of the Museum of Modern Art issued a terse rebuff—the reply to HARP’s request for dialogue and postponement of the shipment of Wally to Europe was: “Come and sue us if you want to prevent the painting from leaving. You have until Thursday.” Or something to that effect.

Without the painting in hand on US territory, the Bondis had no case. Fortunately, there were a number of legal issues that surrounded the Schiele exhibit’s hasty entry into the United States. Those legal issues provided a minimal opening for the District Attorney’s office to contemplate an aggressive move against MOMA to secure the painting and protect the rights of the Bondis on the suspicion that the painting might in fact be stolen property.

But the District Attorney’s office could not consider any form of drastic action against MOMA. It waited for the federal government to act. On the Monday preceding the expected departure of the painting, the Federal and legislative branches pulled their pins out of the game. Morgenthau was truly alone. But he was ready, whether he admits it or not, to launch his action.

And so, Robert did what he normally does, but which stood out as an outrageous exercise of bravura against the caste of Brahmins, symbolized by the tier one museums of New York and their friends and sycophants and followers and admirers. It was more like the 7th Cavalry charging when all hope had faded. As he explained it to us—Willi, Ori, and I—he doesn’t tolerate stolen property in his jurisdiction, especially if it is tainted by crimes against humanity.

Wally was saved. All hell broke loose. New York Museums instantly vilified Robert Morgenthau as a villain who was about to rain an economic calamity onto New York City. This message was delivered in unison by every major cultural institution in Gotham.

Morgenthau contacted HARP and asked if we would supply him with an affidavit in defense of his action to safeguard the rights of the Bondis. We complied with pleasure. Ori Soltes did the honors as chairman of HARP. We sat in Robert’s rickety conference room under the watchful eye of his late father, Henry. We were in good company. As it turns out, HARP is the only group that provided such an affidavit in defense of Morgenthau’s action.

This is basically the story of HARP’s involvement in preventing Wally from leaving the United States and securing the rights of the Bondis to a fair hearing of their claim. Wally did not mysteriously stay in New York by some act of divine inspiration that befell Robert Morgenthau. Without plenty of assistance, he could not have acted without knowing what we knew about the already-emerging complexities of the case. What had started as a simple request to modify the provenance of a painting in MOMA’s catalogue of the Schiele exhibit turned into a nightmare, both for the museum community, the US government, the Austrian government, and, the Bondis.

The rest is history. But on that fateful Wednesday afternoon, history was made as a result of a month of intensive lobbying, all-out pressure, and persistence from a small group of individuals who simply wanted Wally and Night City III to remain in New York so that their origins could be sorted out in the name of justice for Holocaust victims and their families.

I am relieved for the Bondi family, but the relief is bittersweet.

The only outcome that we had envisioned as just was restitution, assuming that there would have been no systemic failings.

I commend Larry Kaye and Howard Spiegler of the law firm of Herrick, Feinstein, for having found the best possible result to allow for closure to a very unpleasant and painful and trying ordeal, prompted initially by a racial crime perpetrated against a Jewish woman who loved her Wally. At least, Wally returns to Vienna with a price tag attached to its frame. But at what cost?

Regards,
Marc Masurovsky